First, does Protect Marriage, as citizens of California responsible for Prop 8, have standing to defend Prop 8 in federal court? If you recall, the Ninth Circuit asked the California Supreme Court to weigh in on this issue, and that court decided that, given the breadth and importance of the initiative power in California lore, Protect Marriage does have standing as a matter of state law. That is, if we were in California state court, Protect Marriage could step into the shoes of the State apparatus if that State refused to defend a duly enacted law.

But, standing under state law is a necessary, yet insufficient basis for standing under federal law. Given the Ninth Circuit's broadly stated willingness to rely on the California Supreme Court's decision, it is more than likely that the court will either assume federal standing or accept standing as a matter of federal law. The latter option would, in my opinion however, be wrong on the law; the former option would also be bad law, given the importance of standing: if you don't belong here in the first place, how can we render a decision?

Second, if Protect Marriage has standing, should Judge Walker's decision declaring that Prop 8 violates the Due Process and Equal Protection Clauses of the U.S. Constitution be affirmed? This question is the heart of the matter, the merits of the case, concerning the constitutionality of California's discrimination against gay couples.

If you read the question again, you might notice the careful choice of words: this appeal is not just about the constitutionality of Prop 8; more accurately, the appeals court is passing judgment on whether Judge Walker erred when he declared Prop 8 unconstitutional. The difference matters. From Day 1 of Civil Procedure and Federal Courts, law students know that it's a lot easier for an appellate court to affirm a decision below than reject it. This is what makes this case so important.

The psychological, sociological, and historical evidence that the American Foundation for Equal Rights (AFER) and its legal team of Ted Olson, David Boies, and a host of others so skillfully offered at trial was left unanswered by Protect Marriage at trial. In fact, Judge Walker stated numerous times that this or that factual finding was offered unopposed, with no evidence to counter its veracity. So, in the Perry case, the record shows all the psychological evidence that shows that gay parents make excellent parents, that their children grow up to be just as productive as the children of heterosexual parents, and that the state's other justifications for a ban on same-sex marriage have no foundation in facts. The record is also devoid of any evidence contradicting the conclusion that marriage is not about procreation, but about an enduring and emotional union of two people in love.

A federal appellate court is limited to the record before it. It cannot make decisions based on outside information or anything not raised at trial. The court also has to approve factual findings unless they are "clearly erroneous," and while George Rekers and Tony Perkins and their ilk might disagree with the findings, the findings are certainly not "clearly erroneous" and there is no evidence to suggest they are. A positive Ninth Circuit decision, then, will not only affirm a right to marry under federal law, but it will affirm these facts and conclusions we all know to be true as a matter of federal law, and these facts can be used in other gay rights cases.

This is the main reason why Perry v. Brown is so important, and why we should thank AFER, its leadership, and its legal team for the progress they are making on behalf of all gay persons. No hypothetical ballot initiative to overturn Prop 8 -- even if successful! -- could help every other gay rights matter like a positive Ninth Circuit decision in Perry could. Advocates would have circuit court precedent for the true equality of gay people as a matter of fact and law, and that would play well in cases related to the Defense of Marriage Act, adoption and surrogacy, employment discrimination, federal benefits for gay service members, anti-harassment laws, and so on.

Third, did Judge Ware abuse his discretion when he denied Protect Marriage's motion to vacate the lower court decision on the grounds that Judge Vaughn Walker should have recused himself? As we have discussed, Protect Marriage's basis for that motion was that because Judge Walker is gay and was in a long-term relationship at the time of trial, he should not have passed judgment on Prop 8 because he may, at some point in the future, want to marry. Judge Ware dismissed that argument as pure conjecture and offensive -- that a gay man cannot be impartial is the stuff of insidious stereotypes. We expect the Ninth Circuit to uphold his decision.

UPDATE: What is the standard of review for discrimination on the basis of sexual orientation?

When Perry began, the governing theory was that sexual orientation discrimination gets the lowest standard of review -- rational basis -- which means that any discrimination against gays can be justified if there is "any conceivable ... legitimate state interest" behind the discrimination. Even though that is a low standard, the Supreme Court has found that certain anti-gay discrimination cannot even pass that hurdle (Romer and, perhaps, Lawrence). Judge Walker concluded that Prop 8 does not pass rational basis review by finding that all the state's possible justifications were baseless and just a smoke screen for anti-gay animus. He also offered an alternative holding that sexual orientation discrimination deserved strict scrutiny because of the history of anti-gay discrimination and the immutability of sexual orientation, among other factors. Since then, President Obama has called for heightened scrutiny -- between rational basis and strict scrutiny -- for state action that discriminates on the basis of sexual orientation. The Ninth Circuit has the first opportunity to declare a standard of review for anti-gay discrimination in this new legal context.

What happens after tomorrow?

Unfortunately, even if the Ninth Circuit affirms Judge Walker's decision, we could not automatically marry our loved ones. The court would have to lift the stay of Judge Walker's order, which it is unlikely to, given the expectation of future appeals.

The losing side has the option of petitioning for a rehearing en banc, which is a reconsideration of the issues by more judges (likely, 11) than just the three on the current panel. A decision on that motion could take a few weeks, but if a rehearing is granted, there could be another hearing. Given how important this case is, an en banc rehearing seems likely. Again, the losing side could then petition for a writ of certiori before the Supreme Court, asking the nation's highest court to take the case, or any part of it. If Perry reaches the Supreme Court, it will most likely be in the Court's next term (2012-2013).

What does this all mean?

Many of us are expecting a positive omnibus decision covering standing, merits, and the motion to vacate. I think the denial of the motion to vacate will be affirmed, standing will be granted, and Judge Walker's conclusions of law will be affirmed. And, when that happens, it will be the greatest day in gay rights history in this country since Lawrence v. Texas. Marriage is a proxy fight for so many things: adoption, surrogacy, access to state entitlements, equality in general. But more importantly, Perry is the vessel through which our federal law will finally recognize the inherent value of who we are. If we can marry, and our law dispenses with the last vestiges of state rationales for anti-gay discrimination -- all of which have been levied against us in Perry -- then states will have few reasons to discriminate against us in other areas. If we can marry, we will finally be able to say, "We belong."

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

This past weekend at its New York gala, the Human Rights Campaign honored Goldman Sachs with the 2011 Workplace Equality Innovation Award. Accompanying that honor was a video released by HRC's 'Americans for Marriage Equality' campaign featuring Goldman CEO Lloyd Blankfein (above) and an article in the New York Times:

Fred Sainz, an executive with the Human Rights Campaign, said the organization sought Mr. Blankfein, in part, because he is “an unexpected messenger.”

“Lloyd Blankfein is not someone average Americans would think is going to support marriage equality,” Mr. Sainz said. “The green visor crowd is not typically associated with socially progressive policies, and this is further proof that a diversity of Americans are coming to the same conclusion.”

The Queer Caucus: 1. Condemns HRC for honoring Goldman Sachs, 2. Calls upon HRC to adopt a strategy of Full Equality by 2014, and 3. Demands that HRC create a transparent process that includes the grassroots.

Cops moved the protesters across the street to a location where the black-tie crowd could not hear their chants. Still some protesters entered the Waldorf lobby to make their case. Some gala attendees reportedly mocked the protest via Twitter.

And today, Marketing and communications consultant Andrew Beaver slammed HRC in the Huffington Post. Beaver said giving such an honor to "a predatory company like Goldman Sachs" shows that HRC "has seriously lost its way at a unique time in our country and the LGBT movement's history."

HRC's willingness to whitewash the pasts of individuals and organizations in return for cold cash is nothing new. In some ways I don't fault the group's willingness to look these execs in the eye, take their money, and use it to promote LGBT equality. But this strategy has its limits. In honoring Goldman Sachs, HRC is incredibly tone-deaf to the enormous outrage nearly all Americans feel toward the banks and securities firms at the center of the economic meltdown...

...I'm not suggesting it is HRC's job to police the American economy, nor do I think an organization that represents the spectrum of LGBT opinion should become a mouthpiece for critiques of our economic system, but I do believe HRC should embrace fundamental progressive values, especially those that so directly impact a generation we encouraged to live by those values. In honoring Goldman Sachs, HRC is aligning itself with a company that has nearly bankrupted an entire future generation and would do it again. This past Saturday HRC sent the message of "do as I say, not as I do," and that is very sad.

As I mentioned earlier today, tomorrow's decision regarding the constitutionality of Proposition 8 is coming tomorrow before 10 am PST. We'll have the ruling followed by analysis from Ari Ezra Waldman here on Towleroad.

The American Foundation for Equal Rights is holding a press conference at 10:30 am in L.A. which we'll try to have for you live here.

Here's some information on rallies being held around tomorrow's Prop 8 decision.

Gather on the steps of the Ninth Circuit Federal Courthouse, 95 7th Street (at Mission), San Francisco, CA 94103-1518 to receive the ruling (anticipated at 10:00 AM). Afterwards, we will proceed to San Francisco City Hall, where clergy will be available to bless couples who are not able to marry because of Prop. 8. (Even if the Ninth Circuit rules in our favor, it is highly likely that there will be a stay on the decision, meaning no marriages could take place immediately.)

SECOND RALLY @5:00 PM:

Gather at Jane Warner Plaza, on 17th street across from the MUNI station on Castro and Market, San Francisco, CA 94114 for a community rally. We will either celebrate or protest the decision, and either way, rededicate our resolve to achieve full federal equality nationwide.

First, we will gather at the West Hollywood Park (next to the Abbey) to hear various speakers from the community, including West Hollywood Mayor John Duran, NoH8 founder Adam Bouska, Love Honor Cherish Interim Executive Director Eric Harrison, Stonewall Democratic Club President Stephen Simon, and Jon Davidson, Legal Director of Lambda Legal.

Then we will march down Santa Monica Blvd to demand full equality now!

Francis Bean Cobain's sad testimony about Courtney Love: "(Love) has taken drugs for as long as I can remember. She basically exists now on…Xanax, Adderall, Sonata and Abilify, sugar and cigarettes. She rarely eats… She often falls asleep in her bed while she is smoking, and I am constantly worried that she will start a fire (which she has done at least three times) that will threaten our lives."

Rafael Morelos, a gay teen in Wenatchee, Washington commits suicide after being bullied. "He was tired of people saying that his little brothers would follow in his footsteps and be gay too."

Neil Patrick Harris and David Burtka refuse to 'baby talk' their twins: "My parents always talked to my brother and myself like we were regular people and not babies. So I don't talk down to them in baby talk. I try to talk to them even though they can't speak the language yet."

Jamaican gay rights activist discusses gang rape of lesbians at London talk: “When we find out about these cases (involving gay women), they are usually so horrible that they rise up to the level of having to be reported. There was one instance where a gang of four men raped a lesbian because they said she was ‘taking over all good looking women.' They cut her genitals, so she could ‘better take men’ because ‘that is why she was a lesbian’."

Miley Cyrus speaks out for LGBT equality in Glamour: "I believe every American should be allowed the same rights and civil liberties. Without legalized same-sex marriage, most of the time you cannot share the same health benefits, you are not considered next of kin and you are not granted the same securities as a heterosexual couple. How is this different than having someone sit in the back of the bus because of their skin color?"